STANDING COMMITTEE ON REGULATIONS AND PRIVATE BILLS

FIRST REPORT 2016

1^st Session, 41^st Parliament
65 Elizabeth II

ISSN 0835-037X (Print)
ISSN 2369-419X [English] (PDF and HTML)
ISSN 2369-4203 [French] (PDF and HTML)

ISBN 978-1-4606-7613-4 (Print)
ISBN 978-1-4606-7615-8 [English] (PDF)
ISBN 978-1-4606-7617-2 [French] (PDF)
ISBN 978-1-4606-7614-1 [English] (HTML)
ISBN 978-1-4606-7616-5 [French] (HTML)
 

The Honourable Dave Levac, MPP

Speaker of the Legislative Assembly

 

Sir,

Your Standing Committee on Regulations and Private Bills has the honour to present its Report and commends it to the House.

Indira Naidoo-Harris, MPP
Chair of the Committee

Queen's Park
March 2016

STANDING COMMITTEE ON REGULATIONS AND PRIVATE BILLS

Comité permanent des RÈGLEMENTS ET DES PROJETS DE LOI D'INTéRÊT PRIVé

Toronto, Ontario M7A 1A2

 

 

 

STANDING COMMITTEE ON REGULATIONS AND PRIVATE BILLS

MEMBERSHIP LIST

 

1^st Session, 41^st Parliament
 

Indira Naidoo-Harris

Chair

 

Kathryn McGarry

Vice-Chair

 

 

CHRISTOPHER TYRELL

Clerk of the Committee

 

tamara hauerstock

Research Officer

 

ANDREW McNAUGHT

Research Officer

Contents

Acknowledgements   ii

Introduction   1

Statistics: 1995 – 2014  1

Number of Regulations Made  1

New, Revoking and Amending Regulations  2

Regulations Reported   4

Ministry of the Attorney General 5

O. Reg. 199/14 amending O. Reg. 107/99 (General) made
under the Legal Aid Services Act, 1998  5

Ministry of Education   6

O. Reg. 75/14 (Calculation of Average Daily Enrolment for the 2014-2015 School Board Fiscal Year) made under the Education Act 6

Ministry of Energy  7

O. Reg. 126/14 amending O. Reg. 429/04 (Adjustments under Section 25.33 of the Act) made under the Electricity Act, 1998  7

Ministry of Government and Consumer Services  7

O. Reg. 309/14 amending Regulation 74 (General) made
under the Collection Agencies Act (now the Collection and Debt Settlement Services Act) 7

Ministry of Municipal Affairs and Housing  10

O. Reg. 127/14 (Forms) made under the Line Fences Act 10

Update on Responses to Regulations Previously Reported by the Standing Committee   11

First Report 2015 (Regulations Filed in 2013) 11

First Report 2014 (Regulations Filed in 2012) 12

Appendix A   16

Section 33 of the Legislation Act, 2006  16

Appendix B   17

Standing Order 108(i) 17

Appendix C   18

Committee's Process for the Review of Regulations  18

Appendix D   19

Acts Under Whose Authority Ten or More Regulations Were Filed
in 2014  19

Appendix E   20

Ministries and Offices and the Number of Regulations Filed
in 2014 for Which Each Was Responsible  20

 

Acknowledgements

The Committee wishes to express its appreciation to all of the legislative staff who assisted us in our work.  In particular, we wish to thank

· Valerie Quioc Lim and Christopher Tyrell, the Committee's Clerks, who performed the procedural and administrative duties necessary for the carrying out of our regulations mandate; and

· Erin Fowler, Tamara Hauerstock, Michael Huynh, Andrew McNaught and Heather Webb of the Legislative Research Service who acted as Counsel to the Committee and who performed the examination of the 312 regulations covered in this report.  Ms. Hauerstock prepared a draft report for the Committee's consideration; Mr. McNaught oversaw the regulations review.

Introduction

The Committee presents this report on regulations filed under Ontario statutes during the period January to December 2014, in accordance with its terms of reference, as set out in the Legislation Act, 2006 and the Standing Orders of the Legislative Assembly.

Section 33 of the Act (reproduced in Appendix A) requires the Committee to examine the regulations made under Ontario statutes, and provides that all regulations stand permanently referred to the Committee.  In conducting its examination, the Committee is directed to consider "the scope and method of the exercise of delegated legislative power," but not "the merits of the policy or objectives to be effected by the regulations or enabling Acts."  The Committee is required, from time to time, to report its observations, opinions and recommendations to the Assembly.

Standing Order 108(i) (reproduced in Appendix B) sets out nine guidelines the Committee is to apply when conducting its review.  Guideline 2, for example, provides that there should be statutory authority to make a regulation.  The Standing Order also stipulates that the Committee may not report a regulation to the Assembly without first affording the ministry or agency concerned "an opportunity to furnish orally or in writing to the Committee such explanation as the ministry or agency sees fit."

The Committee's process for reviewing regulations and preparing its Report is set out in Appendix C.

Statistics: 1995 – 2014

Number of Regulations Made

The graph on the following page indicates the number of regulations filed with the Registrar of Regulations from 1995 to 2014.[1]  Over this 20-year period, the average number filed each year was 527.[2]

 

Total Regulations Filed: 1995 – 2014

The 312 regulations filed in 2014 were made under the authority of 101 Acts under the administration of 20 ministries and offices.[3]  Five Acts generated at least 10 regulations each; these represented 29% of all regulations filed in 2014.

Appendix D lists the Acts under which at least 10 regulations were made in 2014.  Appendix E sets out the ministries responsible for regulations made in 2014 and the number falling under each ministry.

New, Revoking and Amending Regulations

Generally speaking, a regulation falls into one of the following three categories:

· New.

· Amending: An amending regulation adds, removes or substitutes text in a pre-existing or "parent" regulation.

· Revoking: A revoking regulation revokes an existing regulation.[4]

The tables below show the number of new, revoking and amending regulations made in the years 2005 to 2014, and the proportion they represent of all regulations made in a particular year.[5]

New Regulations: 2005 – 2014

 

Revoking Regulations: 2005 – 2014

 

Amending Regulations: 2005 – 2014

 

 

Of the 37 new regulations made in 2014, eight were made under a statute with no previous regulations.  One amending regulation (O. Reg. 163/14) amended a 2014 regulation made under a statute with no previous regulations and has been included in the Table below.

New Regulations Made in 2014
Under Statutes with No Previous Regulations

Regulations Reported

Following our initial review of the 312 regulations filed in 2014, we wrote to nine ministries to inquire about 15 regulations.  After considering the responses to our inquiries, we have decided to report five regulations under two Committee guidelines:

· Guideline 2: Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties.

· Guideline 3: Regulations should be expressed in precise and unambiguous language.

Regulations are reported under the Ministry responsible for the regulation being reported.  It should be noted that our comments and recommendations relate to specific provisions of a regulation, rather than to the regulation as a whole.

Ministry of the Attorney General

O. Reg. 199/14 amending O. Reg. 107/99 (General) made under the Legal Aid Services Act, 1998

 

The regulation prescribes "version 1.1" of three documents to be made available on the website of Legal Aid Ontario (LAO).  A search for the documents on the LAO website indicates that, for each of the three documents prescribed by the regulation, the version on the website is not Version 1.1, but Version 1.2.  Also, the regulation refers to one of the prescribed documents as "Clinic Financial Eligibility Test" while the document posted on the LAO website is "Financial Eligibility for Clinic Law Services."

We also observed a possible violation of s. 62(4)(b) of the Legislation Act, 2006, which requires that earlier versions of incorporated documents that were previously incorporated into the regulation remain readily available to the public.  Our search on the LAO website did not locate the documents that were prescribed by O. Reg. 107/99 prior to the amendments made by O. Reg. 199/14.

In its response to our letter, the Ministry indicated that they contacted LAO about the issues we raised.  LAO advised that when the documents were posted, they were modified to meet accessibility standards.  During this change, the version number and the title of one of the documents were inadvertently changed.  The Ministry indicated that the correct versions are now available on the LAO website.  The Ministry further noted that the earlier versions of incorporated documents are now available on the LAO website as well.

Given the steps the Ministry has taken to rectify this matter, the Committee is not making a recommendation with respect to O. Reg. 199/14.

Ministry of Education

O. Reg. 75/14 (Calculation of Average Daily Enrolment for the 2014-2015 School Board Fiscal Year) made under the Education Act

 

This regulation prescribes the formula for calculating a school board's Average Daily Enrolment (ADE) for the 2014-2015 fiscal year.  Section 15 of the regulation prescribes the formula for calculating a board's continuing education ADE.  The first component of the formula is set out in paragraph 1 of s. 15(2) as follows:

The 2014-2015 continuing education average daily enrolment of pupils of a board is the sum of the following:

1. A number in respect of each pupil who is enrolled in a continuing education class or course established by the board, other than a continuing education course delivered primarily through means other than classroom instruction, calculated as follows . . . [emphasis added]

We asked the Ministry why the regulation refers to "a number" instead of "the number" when the number in question is the result of a prescribed formula.  The regulation also contains other references to "a number" that are in fact references to specific calculations.

In its response to our letter, the Ministry indicated that as the regulation to govern the calculation of average daily enrolment is done annually, the reference can be changed to "the number" in future average daily enrolment regulations.

Given the Ministry's commitment to make this change in future regulations, the Committee is not making a recommendation with respect to O. Reg. 75/14.

 

Ministry of Energy

O. Reg. 126/14 amending O. Reg. 429/04 (Adjustments under Section 25.33 of the Act) made under the Electricity Act, 1998

 

O. Reg. 126/14 added the following definition to its parent regulation, O. Reg. 429/04:

"NAICS" means the North American Industry Classification System maintained for Canada by Statistics Canada, as amended or revised from time to time.

Subsection 62(3) of the Legislation Act, 2006 generally requires static incorporation of documents by reference (i.e., incorporating a specific version of a document at a defined date) unless a contrary intention appears in the governing Act.  We did not locate authority in the Electricity Act, 1998 for rolling incorporation of documents for regulations made under Part II.2 of the Act (though the Act does provide for it elsewhere).  We asked the Ministry whether the new definition is in compliance with s. 62(3) of the Legislation Act, 2006.

In its response to our letter, the Ministry stated that it would like to take this opportunity to further review both the amending and the parent regulation, "in order to determine what approach would best suit this situation."

Given the Ministry's commitment to review this matter, the Committee is not making a recommendation with respect to O. Reg. 126/14.

Ministry of Government and Consumer Services

O. Reg. 309/14 amending Regulation 74 (General) made under the Collection Agencies Act (now the Collection and Debt Settlement Services Act)

O. Reg. 309/14 amended Regulation 74 by adding a requirement that collection agencies and collectors that provide debt settlement services keep certain records on their premises and provide them to the Registrar upon request.  A collector is defined in the Collection and Debt Settlement Services Act as "an individual employed, appointed or authorized by a collection agency."

We noted to the Ministry that the Act grants authority for regulations requiring collection agencies to keep records and provide information to the Registrar; however, we did not locate statutory authority for imposing this type of requirement on collectors.

In its response to our letter, the Ministry indicated that the regulation requires, as a term and condition of registration, that "the Registrar may require further information or material be submitted by any . . . registered person within a specific time limit."

The Ministry also stated:

In crafting the requirement . . . it is noted the program area needs the records in order to ensure compliance with the Act.  In addition the [Act] has been amended to clarify that it applies to, and requires registration, regardless of whether either of those classes of registrant is within Ontario if the debtor is in Ontario. . . . In addition the Act does not prohibit a collector engaging in collection activities outside of the collection agency's workplace.

Consequently, the Ministry is of the view that [the] requirement [to] provide records on the request of the Registrar, is authorized under ss. 30(1)(a) [of the Act] . . . and that the requirement to keep and provide records is a term and condition of registration under the Act.

The Committee notes that the requirement to retain and provide records appears in s. 30 of the regulation; however the terms and conditions of registration are found separately, in ss. 13-16 of the regulation.

In our view, the placement of these provisions within the regulation suggests that the record-keeping requirement is not linked to the ability of the Registrar to require further information or material as a term and condition of registration.

We also note that s. 30(1)(f) of the Act, which authorizes regulations "requiring and governing the books, accounts and records that shall be kept by collection agencies," makes no reference to collectors.

 

 

 

 

O. Reg. 309/14 revoked and replaced s. 17(2) of Regulation 74.  Subsection 17(2) now provides:

Every collection agency or branch thereof shall maintain in respect of all trust funds that come into its hands a separate trust account in any Ontario branch of a bank, a corporation registered under the Loan and Trust Corporations Act or a credit union as defined in the Credit Unions and Caisses Populaires Act, 1994 authorized by law to accept deposits, and such account shall be designated as the "Collection and Debt Settlement Services Act Trust Account" in English and "compte en fiducie prévu par la Loi sur les services de recouvrement et de règlement de dette" in French.

The Act contains a similar, though not identical, requirement ins. 30(2):

A trust account that a collection agency is required to hold shall be held in a separate account in Ontario designated as a trust account at a bank listed in Schedule I or II to the Bank Act (Canada), a trust corporation, a loan corporation or a credit union.

We asked the Ministry whether s. 17(2) of Regulation 74 is confusing when read alongside s. 30(2) of the Act.

The Ministry replied that, in its view, there is no conflict between the requirement of s. 30(2) of the Act and s. 17(2) of the regulation.  The Ministry noted:

 

The requirement in subsection 17(2) of the regulation amplifies the requirement in subsection 30(2), by creating a positive obligation on the collection agency to maintain in respect of all trust funds that come into its hands a separate trust account, and requires that the trust account be designated as the "Collection and Debt Settlement Services Act Trust Account."  The reason for the requirement that the account be named with the name of the CDSSA is to facilitate inspection under the Act.  The requirement that the trust account be in Ontario, as required by ss. 30(2) of the Act is a necessary precondition for an inspection, as provincial authorities do not have jurisdiction to conduct inspections in other Provinces or Territories.

The Committee remains concerned that s. 30(2) of the Act and s. 17(2) of the regulation are confusing to the reader.  They contain partial overlap, and either one of them, read in isolation, gives an incomplete picture of the requirements relating to trust accounts.

 

Ministry of Municipal Affairs and Housing

O. Reg. 127/14 (Forms) made under the Line Fences Act

 

Section 1(1) of O. Reg. 127/14 prescribes Forms 1-15.  Subsection 1(2) provides that the prescribed forms are "forms dated May, 2014 that are available on the website of the Government of Ontario Central Forms Repository under the listing for the Ministry of Municipal Affairs and Housing."

The versions of Forms 1-15 posted on the website of the Government of Ontario Central Forms Repository indicate an edition date of January 2015.  We asked the Ministry whether the forms posted on the Repository website are the versions prescribed by O. Reg. 127/14.

In its response to our letter, the Ministry indicated that it will be taking steps to amend O. Reg. 127/14 to update the reference of "May, 2014" to "January, 2015."

Given the Ministry's commitment to amend the regulation, the Committee is not making a recommendation with respect to O. Reg. 127/14.

Update on Responses to Regulations Previously Reported by the Standing Committee

First Report 2015
(Regulations Filed in 2013)

O. Reg. 288/13 amending O. Reg. 221/11 (Extended Day and Third Party Programs) made under the Education Act

Ministry of Education

 

First Report 2014
(Regulations Filed in 2012)

O. Reg. 69/12 amending O. Reg. 260/97 (General) made under
the Grains Act

Ministry of Agriculture, Food and Rural Affairs

 

O. Reg. 278/12 (Compensation) made under the Animal Health Act, 2009

Ministry of Agriculture, Food and Rural Affairs

 

O. Reg. 47/12 amending Regulation 823 of R.R.O. 1990 (General) made under the Municipal Freedom of Information and Protection of Privacy Act

Ministry of Government and Consumer Services

 

O. Reg. 149/12 amending Regulation 833 of R.R.O. 1990 (Control of Exposure to Biological or Chemical Agents) made under the Occupational Health and Safety Act

Ministry of Labour

 

 

O. Reg. 308/12 (Exploration Plans and Exploration Permits) made under the Mining Act

Ministry of Northern Development and Mines

 

 

O. Reg. 321/12 (Classes of Members and Registration) made under the Ontario College of Trades and Apprenticeship Act, 2009

Ministry of Training, Colleges and Universities

 

Appendix A

Section 33 of the Legislation Act, 2006

33. (1) At the commencement of each session of the Legislature, a standing committee of the Assembly shall be appointed under this section with authority to sit during the session.

(2) Every regulation stands permanently referred to the standing committee for the purposes of subsection (3).

(3) The standing committee shall examine the regulations with particular reference to the scope and method of the exercise of delegated legislative power but without reference to the merits of the policy or objectives to be effected by the regulations or enabling Acts, and shall deal with such other matters as are referred to it by the Assembly.

(4) The standing committee may examine any member of the Executive Council or any public servant designated by the member respecting any regulation made under an Act that is under his or her administration.

(5) The standing committee shall, from time to time, report to the Assembly its observations, opinions and recommendations.

 

Appendix B

Standing Order 108(i)

108      Within the first 10 Sessional days following the commencement of a Parliament, the membership of the following Standing Committees shall be appointed, on motion with notice, for the duration of the Parliament:

i. Standing Committee on Regulations and Private Bills . . . to be the Committee provided for by section 33 of Part III (Regulations) of the Legislation Act, 2006, and having the terms of reference as set out in that section, namely: to be the Committee to which all regulations stand permanently referred; and to examine the regulations with particular reference to the scope and method of the exercise of delegated legislative power without reference to the merits of the policy or objectives to be effected by the regulations or enabling statutes, but in so doing regard shall be had to the following guidelines:

(i) Regulations should not contain provisions initiating new policy, but should be confined to details to give effect to the policy established by the statute;

(ii) Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties;

(iii) Regulations should be expressed in precise and unambiguous language;

(iv) Regulations should not have retrospective effect unless clearly authorized by statute;

(v) Regulations should not exclude the jurisdiction of the courts;

(vi) Regulations should not impose a fine, imprisonment or other penalty;

(vii) Regulations should not shift the onus of proof of innocence to a person accused of an offence;

(viii) Regulations should not impose anything in the way of a tax (as distinct from fixing the amount of a licence fee, or the like); and

(ix) General powers should not be used to establish a judicial tribunal or an administrative tribunal,

and, the Committee shall from time to time report to the House its observations, opinions and recommendations as required by section 33 of Part III (Regulations) of the Legislation Act, 2006, but before drawing the attention of the House to a regulation or other statutory instrument the Committee shall afford the ministry or agency concerned an opportunity to furnish orally or in writing to the Committee such explanation as the ministry or agency thinks fit.

 

Appendix C

Committee's Process for the Review of Regulations

 

Appendix D

Acts Under Whose Authority Ten or More Regulations Were
Filed in 2014

 

Appendix E

Ministries and Offices and the Number of Regulations
Filed in 2014 for Which Each Was Responsible